ARMY BOARD FOR CORRECTION OF MILITARY RECORDS RECORD OF PROCEEDINGS IN THE CASE OF: BOARD DATE: 2 July 2019 DOCKET NUMBER: AR20170018063 APPLICANT REQUESTS: * an upgrade to his other than honorable condition discharge to general * correction of his Veteran Affairs (VA) verification service letter APPLICANT'S SUPPORTING DOCUMENTS CONSIDERED BY THE BOARD: * DD Form 149 (Application for Correction of Military Record) * Two Army honorable discharge certificates * VA verification of service letter * University of Phoenix transcript FACTS: 1. The applicant did not file within the three year time frame provided in Title 10, United States Code (USC), section 1552 (b); however, the Army Board for Correction of Military Records conducted a substantive review of this case and determined it is in the interest of justice to excuse the applicant's failure to timely file. 2. Concerns with correcting information with the VA is not a mission of the Board. The applicant must contact the VA to address any concerns he has with their records. Thus, the Board will not consider the portion of the request pertaining to correcting the VA verification letter. 3. The applicant states he served honorably during 2 November 1989 through November 1998 for over 9 years and thank the armed services for their gratitude. Because of his military experience, he is disciplined, he makes precise decisions, and respond appropriately in any situation. Moreover, he still live the military principles that have made him a unique person. 4. The applicant provides: a. A copy Two Army honorable discharge certificates which shows he was honorably discharged on 23 November 1998 and 2 May 1993. b. His VA service verification letter that shows his service dates in the Army as follows: * 9 February 1988 to 13 August 1988, honorable * 2 November 1989 to 2 May 1997, other than honorable conditions * 3 May 1997 to 22 July 1999, other than honorable conditions c. His University of Phoenix transcript. 5. A review of the applicant’s service record shows: a. Having had prior service in the Army National Guard, he reenlisted in the Regular Army on 2 November 1989. b. Court martial charges were preferred against the applicant on 23 June 1999 for one specification of intent to deceive, sign an official record, DD Form 1746, Application for Assignment to Housing, which was false in that it stated his wife and son resided with him and would arrive in Maryland on 1 April 1999, and was then known by the applicant to be so false, one specification of unlawfully strike a child under the age of 16 years, on various areas of the body with his fists and an electrical cable, one specification of wrongfully have sexual intercourse with a woman not his wife, and one specification of wrongfully cohabit with a woman not his wife. c. On 28 June 1999, he consulted with counsel and he was advised of the basis for the contemplated trial by court-martial, the maximum permissible punishment authorized under the Uniform Code of Military Justice, the possible effects of an under other than honorable conditions discharge, and the procedures and rights that were available to him. d. Subsequent to receiving legal counsel, he voluntarily requested discharge under the provision of AR 635-200, chapter 10, for the good of the service in lieu of trial by court-martial for all specifications of preferred charges on 23 June 1999. In his request for discharge, he acknowledged his understanding that: * by requesting discharge, he was admitting guilt to the charge against him, or of a lesser included offense that also authorized the imposition of an undesirable discharge * he acknowledged he understood that if his discharge request was approved he could be deprived of many or all Army benefits, he could be ineligible for many or all benefits administered by the Veterans Administration, and he could be deprived of his rights and benefits as a veteran under both Federal and State laws * he was advised he could submit any statements he desired in his own behalf; he elected to submit a statement e. On 8 July 1999, consistent with his chain of command recommendations the separation authority approved the applicant’s discharge under the provisions of AR 635-200, chapter 10, in lieu of court martial and furnished an under other than honorable condition discharge, and reduced to the lowest enlisted grade in accordance with AR 635-200. f. The applicant was discharged on 22 July 1999. His DD Form 214 shows he was discharged under the provisions of AR 635-200, Chapter 10, in lieu of trial by court martial, KFS - for the good of the service - in lieu of trial by court martial. His characterization of service is under other than honorable conditions. He completed 9 years, 8 months, and 21 days of active service this period, and he had no lost time. 6. By regulation 635-200, a member who has committed an offense for which the authorized punishment includes a punitive discharge may submit a request for discharge in lieu of trial by court-martial. The request may be submitted at any time after charges have been preferred and must include the individual's admission of guilt. Although an honorable or general discharge is authorized, a discharge under other than honorable conditions is normally considered appropriate. Soldiers separated under the provisions of this regulation, chapter 10, in lieu of trial by court-martial are assigned the Narrative Reason for Separation as "In Lieu of Trial by Court-Martial." 7. By regulation 635-5-1, (Personnel Separations – Separation Program Designators (SPD), paragraph 10, in lieu of trial by court martial are assigned the Separation Code KFS. 8. By regulation 601-210, (Regular Army and Reserve Enlistment Program) paragraph 3-8, the RE Code associated with this separation is RE-3 which applies to persons separated from last period of service with a non-waivable disqualification, ineligible for enlistment. 9. In reaching its determination, the Board can consider the applicant's petition and his service record in accordance with the published equity, injustice, or clemency determination guidance. BOARD DISCUSSION: After review of the application and all evidence, the Board determined relief is not warranted. The applicant’s contentions were carefully considered. The Board applied Department of Defense standards of liberal consideration to the complete evidentiary record and did not find any evidence of error, injustice, or inequity. He did not provide character witness statements or evidence of post-service achievements for the Board to consider. Based upon the multiple offenses, some involvement serious criminal misconduct against a child, the Board agreed that the applicant's discharge characterization was warranted as a result of the misconduct. However, prior to closing the case, the Board noted that the applicant had a prior period of honorable service which was not currently reflected on his DD Form 214 and recommended that change be completed to more accurately depict his military service. BOARD VOTE: Mbr 1 Mbr 2 Mbr 3 : : : GRANT FULL RELIEF X X X GRANT PARTIAL RELIEF : : : GRANT FORMAL HEARING : : : DENY APPLICATION BOARD DETERMINATION/RECOMMENDATION: 1. The Board determined the evidence presented is sufficient to warrant a recommendation for partial relief. As a result, the Board recommends that all Department of the Army records of the individual concerned be corrected by adding the following additional statement to block 18 (Remarks) of his DD Form 214: “Continuous honorable active service from 2 November 1989 until 23 March 1999.” 2. The Board further determined the evidence presented is insufficient to warrant a portion of the requested relief. As a result, the Board recommends denial of so much of the application that pertains to upgrading the characterization of his discharge. I certify that herein is recorded the true and complete record of the proceedings of the Army Board for Correction of Military Records in this case. REFERENCES: 1. Title 10, USC, section 1552(b), provides that applications for correction of military records must be filed within three years after discovery of the alleged error or injustice. This provision of law also allows the Army Board for Correction of Military Records (ABCMR) to excuse an applicant’s failure to timely file within the three-year statute of limitations if the ABCMR determines it would be in the interest of justice to do so. 2. AR 635-200, in effect at the time, sets forth the basic authority for the separation of enlisted personnel. 3. Paragraph 3-7a (Honorable Discharge) states an honorable discharge is a separation with honor. The honorable characterization is appropriate when the quality of the member’s service generally has met, the standards of acceptable conduct and performance of duty for Army personnel, or is otherwise so meritorious that any other characterization would be clearly inappropriate. b. Paragraph 3-7b (General Discharge) states a general discharge is a separation from the Army under honorable conditions. When authorized, it is issued to a member whose military record is satisfactory but not sufficiently meritorious to warrant an honorable discharge. c. Chapter 10 of this regulation states a member who has committed an offense or offenses, the punishment for any of which includes a bad conduct or dishonorable discharge, may submit a request for discharge for the good of the service. 3. On 25 July 2018, the Under Secretary of Defense for Personnel and Readiness issued guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records (BCM/NRs) regarding equity, injustice, or clemency determinations. Clemency generally refers to relief specifically granted from a criminal sentence. BCM/NRs may grant clemency regardless of the type of court-martial. However, the guidance applies to more than clemency from a sentencing in a court-martial; it also applies to other corrections, including changes in a discharge, which may be warranted based on equity or relief from injustice. This guidance does not mandate relief, but rather provides standards and principles to guide Boards in application of their equitable relief authority. In determining whether to grant relief based on equity, injustice, or clemency grounds, BCM/NRs shall consider the prospect for rehabilitation, external evidence, sworn testimony, policy changes, relative severity of misconduct, mental and behavioral health conditions, official governmental acknowledgement that a relevant error or injustice was committed, and uniformity of punishment. Changes to the narrative reason for discharge and/or an upgraded character of service granted solely on equity, injustice, or clemency grounds normally should not result in separation pay, retroactive promotions, and payment of past medical expenses or similar benefits that might have been received if the original discharge had been for the revised reason or had the upgraded service characterization. //NOTHING FOLLOWS// ABCMR Record of Proceedings (cont) AR20170018063 5 1